Sims v. Tinney

• Citation: 482 F. Supp. 794
• Decision Date: 16 September 1977
• Docket Number: Civ. A. No. 77-908.
• Parties: L. B. SIMS, D. C., et al., Plaintiffs, v. Jack W. TINNEY, D. C., et al., Defendants.
• Court: United States District Courts. 4th Circuit. United States District Court of South Carolina

482 F. Supp. 794

L. B. SIMS, D. C., et al., Plaintiffs, v. Jack W. TINNEY, D. C., et al., Defendants.

Civ. A. No. 77-908.

United States District Court, D. South Carolina, Greenville Division.

September 16, 1977.

Donald James Sampson, Greenville, S. C., James R. Venable, Decatur, Ga., for plaintiffs.

C. Tolbert Goolsby, Jr., Charles H. Richardson, Harry B. Burchstead, Jr., and L. Kennedy Boggs, Columbia, S. C., for Judith Ehlich, D. C., the Board and its Members.

Charles W. Wofford, Greenville, S. C., for Dr. Henry G. West, Jr., and Dr. Paul E. Parrott.

D. Kenneth Baker, Darlington, S. C., for remaining defendants.

ORDER ON MOTION OF DEFENDANT AMERICAN CHIROPRACTIC ASSOCIATION, INC. TO DISMISS COMPLAINT

HEMPHILL, District Judge.

The complaint in this case is rambling and verbose, and in violation of Rule 8 of the Rules of Civil Procedure;¹ it revolves around a dispute as to the merits of two different philosophies towards the practice of chiropractic. Plaintiffs see themselves as "pure" practitioners, limiting themselves to what they consider the "fundamental" principles of the profession; they do not prescribe drugs and vitamins, use electrical apparatus or engage in forms of treatment that is considered by them as belonging to the medical rather than the chiropractic profession. Defendants, including American Chiropractic Association (ACA), are alleged to be practitioners and advocates of the "mixed methods" school of chiropractic practice, utilizing techniques that the fundamentalist or "pure" chiropractors regard as outside the practice of chiropractic.

In the complaint filed May 13, 1977, defendants are accused in Count I of violating 42 U.S.C. § 1983², in deprivation of the civil and constitutional rights of the plaintiffs, and in Count II of violating the Sherman Act, to the alleged competitive injury of the plaintiffs. Defendant ACA moves that Count I be dismissed for failure to state a claim upon which relief can be granted and for lack of jurisdiction over the subject matter; insist that Count II should be dismissed for failure to state a claim.

ACA has answered the complaint. Initially, ACA entered a general denial. However, for the purposes of this motion, this will assume that the allegations of the complaint are true.

Plaintiff's "Count II" attacks those of defendants' activities that have to do with the dissemination of information and views, to public bodies, the chiropractic profession, students and the general public, as to various methods and techniques of practicing chiropractic. Defendant positions that it is not only in the public interest that such a process of education and discussion continue to take place, but the dissemination of such views and information is protected by the First Amendment to the U.S. Constitution; maintain that plaintiffs have not been deprived of any constitutional rights. They argue that if plaintiffs' claim for injunctive relief and damages is granted, this would only serve to deprive defendants of First Amendment rights, to the detriment of the public.

AS TO COUNT I OF THE COMPLAINT

42 U.S.C. § 1983, under which Count I of this action purports to be brought, reads as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proceeding for redress.

This statute confers rights on the parties, but does not confer jurisdiction on the courts. Jurisdiction is controlled by 28 U.S.C. § 1343(3)³, which provides that the district courts shall have original jurisdiction of any civil action of the kind authorized by Section 1983; see Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974).

Plaintiffs do not allege that any act of Congress has been violated by defendants. Therefore, for plaintiffs to prevail, they must establish, first, that they have been deprived of a right or rights secured by the Constitution of the United States and, second, that such deprivation was caused by a person/persons acting under color of State law.

This court determines that plaintiffs have failed to meet either of the two necessary conditions for the application of Section 1983, and that Count I must be dismissed for lack of subject matter jurisdiction. Count I should be dismissed for the additional reason that it fails to state a cause of action, because the challenged activities of defendant ACA are in fact nothing more than its legitimate expression of the rights of free speech and political petition guaranteed it by the First Amendment to the United States Constitution.

SUBJECT MATTER JURISDICTION

Plaintiff's fundamental premise is that they have a constitutional right to practice not only chiropractic, but their special form of "pure" and "fundamental" chiropractic practice. An impressive line of Supreme Court and other cases show nothing could be further from the fact. The regulation of who may or may not practice a profession, and under what terms and conditions, lies completely within the police power of the state and raises no constitutional question.

In Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963), the Supreme Court held that it was not a violation of either the due process clause or the equal protection clause of the Fourteenth Amendment for a state to make it a misdemeanor for any person other than a lawyer to engage in the business of debt adjustment. The Court said that:

Under the system of government created by our Constitution, it is up to legislatures, not courts, to decide on the wisdom and utility of legislation. p. 729, 83 S.Ct. p. 1030.

The constitutional claims asserted by plaintiffs are "plainly unsubstantial", Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105, 53 S.Ct. 549, 77 L.Ed. 1062 (1933); Newburyport Water Co. v. Newburyport, 193 U.S. 561, 579, 24 S.Ct. 553, 48 L.Ed. 795 (1904); Bailey v. Patterson, 369 U.S. 31, 33, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962), and must therefore be dismissed on the ground that the Court lacks jurisdiction to entertain them, Hagans v. Lavine, supra. As the Supreme Court summed up there:

Over the years this court has repeatedly held that the federal courts are without power to entertain claims otherwise within their jurisdiction if they are "so attenuated and unsubstantial as to be absolutely devoid of merit." 415 U.S. pp. 536-7, 94 S.Ct. p. 1379.

The unsubstantiality of plaintiffs' constitutional claims and others of a similar nature is the subject of a long unbroken line of Supreme Court decisions upholding as constitutional the exercise by the states, under their police power, of the power to prescribe the qualifications of who shall practice medicine, using that term in its widest sense to include all the healing arts. See Dent v. West Virginia, 129 U.S. 114, 9 S.Ct. 231, 33 L.Ed. 623 (1889); Reetz v. Michigan, 188 U.S. 505, 23 S.Ct. 390, 47 L.Ed. 563 (1903); Watson v. Maryland, 218 U.S. 173, 30 S.Ct. 644, 54 L.Ed. 987 (1910); Collins v. Texas, 223 U.S. 288, 32 S.Ct. 286, 56 L.Ed. 429 (1912) (osteopaths); McNaughton v. Johnson, 242 U.S. 344, 37 S.Ct. 178, 61 L.Ed. 352 (1917) (ophthalmologist protesting exclusion from optometry); Crane v. Johnson, 242 U.S. 339, 37 S.Ct. 176, 61 L.Ed. 348 (1917) (drugless practitioners); Douglas v. Noble, 261 U.S. 165, 43 S.Ct. 303, 67 L.Ed. 590 (1923) (dentists); Graves v. Minnesota, 272 U.S. 425, 47 S.Ct. 122, 71 L.Ed. 331 (1926) (dentists); Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955) (optician prohibited from filling lenses except on written prescription of ophthalmologist or optometrist).

The constitutional authority of the states to regulate the practice of the healing professions includes the power of the legislature to set up licensing boards to admit persons into or exclude them from the profession, Reetz v. Michigan, 188 U.S. 505, 23 S.Ct. 390, 47 L.Ed. 560 (1903); Watson v. Maryland, 218 U.S. 173, 30 S.Ct. 644, 54 L.Ed. 987 (1910); Collins v. Texas, 223 U.S. 288, 32 S.Ct. 286, 56 L.Ed. 439 (1912); Crane v. Johnson, 242 U.S. 339, 37 S.Ct. 176, 61 L.Ed. 348 (1917); Douglas v. Noble, 261 U.S. 165, 43 S.Ct. 303, 67 L.Ed. 590 (1923), and to require that their practitioners graduate from an accredited school or have mastered a prescribed body of knowledge, Dent v. State of Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623 (1889); Watson v. Maryland, supra; Crane v. Johnson, supra; Douglas v. Noble, supra; Graves v. Minnesota, 272 U.S. 425, 47 S.Ct. 122, 71 L.Ed. 331 (1926).

The chiropractic profession is not any different from the other healing arts. This is abundantly demonstrated by a case very similar to the present one, New Jersey State Society of Naturopaths v. State Board of Medical Examiners of New Jersey, 79 F.Supp. 327 (D.N.J.1948). There plaintiff chiropractors contended that they had been excluded from practicing their calling by the actions of the New Jersey Legislature and the New Jersey Licensing Board, and were required under the statute to be examined in certain phases of the medical sciences which they regarded as "being unnecessary for the practice of chiropracty". The chiropractors specifically challenged (as plaintiffs challenge here), the right of the State of New Jersey to control the practice of medicine by means of its licensing system; to determine the accreditation to and regulation of schools concerned with instruction in the healing arts; and to establish standards for such schools and for applicants for licenses to practice the healing arts. In a refreshing analysis of facts and the law, the court held that the chiropractors had not presented a substantial constitutional claim, and that the case should...